Cape Breton mother whose child is never expected to live independently appealing verdict

Cape Breton Post

Published: Mar 18 at 10:08 p.m.

['Cape Breton Post court news']

Neonatologist was cleared of any wrongdoing

SYDNEY — A lawyer representing a Cape Breton woman who claimed negligence against a neonatologist has filed an appeal of a jury verdict that cleared the doctor of any wrongdoing.

In appeal documents filed late last week, lawyer Ray Wagner cites six grounds for appeal in the case against Dr. Andrzej Kajetanowicz.

The civil jury panel of four women and three men returned the not negligent verdict Jan. 29 after a three-week trial and about an hour of deliberation. The panel heard testimony from some 20 witnesses.

The Cape Breton Post will not identify the mother in an effort to protect the identity of her nine-year-old son.

In his appeal document, Wagner claims that Supreme Court Justice Robin Gogan erred in law by instructing the jury that the doctor was entitled to reasonably rely on hospital systems to work as intended but failed to add that such reliance was contextual and should be decided on the facts of each situation.

The original notice of claim also named the IWK Health Centre in Halifax and the Cape Breton Regional Hospital in Sydney.

However, both institutions settled their claim with the mother less than a month before trial. Both hospitals agreed to a financial settlement, but neither institution admitted negligence.

Wagner claims that Gogan further erred by imposing a burden of proof on the mother to prove negligence against the two hospitals even though they were no longer parties to the litigation.

As well, said Wagner, the trial judge allowed cross-examination of witnesses on an expert report that was not admitted into evidence, meaning it was not before the jury for consideration.

Wagner also claims Gogan misstated and mischaracterized certain facts of the evidence in her charge to the jury and that she allowed the panel to begin their deliberations after a day of lengthy summations from the lawyers representing the two sides.

He said there was also minimal direction offered by the court on the need to take time to review the conflicting expert opinions and reports, along with an approaching winter storm tha Wagner claims all added to undue pressure on the panel to reach a quick verdict.

The documents are now filed with the Court of Appeal, which will decide whether to hear the matter and, if granted, to set a date for such a hearing.

The boy, along with his identical twin brother, was born in 2008. Some 18 hours after birth, blood was taken from both boys as part of the Nova Scotia Newborn Screening Program that tests for a host of disorders. The laboratory at the IWK Health Centre is the central testing site for the program.

An abnormal result was produced for one of the boys and the results were sent to the program co-ordinator at the IWK. A copy was also sent to the laboratory at the Cape Breton Regional Hospital.

Trial testimony indicated the co-ordinator failed to follow up on the test by contacting the doctor listed on the testing papers or the family.

As for the lab in Sydney, there was no evidence the results were returned to the attending physician or the family.

The Sydney lab did forward a copy of the results to Kajetanowicz who reviewed it before filing it away. He also did not contact anyone about the result, relying instead on a comment on the form stating, “Recall has been initiated by the IWK Health Centre.”

Kajetanowicz’s position was that the IWK was initiating a recall and was following up with the parties involved.

Evidence at the trial indicated that the recall comment was computer generated and no physician had verified the results. Kajetanowicz was the only doctor to actually view the form.

Some 14 months after the initial test, the child was again tested and it was discovered he was suffering from primary congenital hypothyroidism that affects the thyroid gland.

As a result, he was unable to produce a sufficient amount of the thyroid hormone necessary for healthy growth and development.

The delay in diagnosis has had a lasting effect on the child, who has a learning disability, attention deficit hyperactivity disorder and autism spectrum disorder. He has difficulty controlling aggression and is considered to be a high risk to develop further mental disorders as he continues to grow. He is never expected to live independently. His twin suffers none of the same disorders.

In his final summation to the jury, lawyer Brian Downie, who represented Kajetanowicz, said his client was satisfied that the note on the form concerning recall by the IWK would result in a follow-up test.

“He was misled and it’s not his fault,” said Downie, adding that his client was relying on information provided by the main paediatrics facility in Atlantic Canada.

Wagner, in his final summation, told the jury panel, that Kajetanowicz had a duty of care to follow up on the initial test result.